In New Brunswick, an annulment declares that a valid marriage never existed, while a divorce legally ends a valid marriage. Annulments are rarely granted in New Brunswick because applicants must prove specific grounds such as bigamy, lack of mental capacity, fraud, duress, non-consummation, or marriage within prohibited degrees of consanguinity. The divorce filing fee in New Brunswick totals $110 ($100 petition plus $10 clearance certificate), while annulment proceedings typically cost $2,000 to $10,000 in legal fees due to evidentiary complexity. Under the Divorce Act, R.S.C. 1985, c. 3, divorce requires proving marriage breakdown through 1 year of separation, adultery, or physical or mental cruelty. Both annulment and divorce proceedings are handled by the New Brunswick Court of King's Bench, Family Division.
| Key Facts | Details |
|---|---|
| Divorce Filing Fee | $110 ($100 petition + $10 clearance certificate) |
| Residency Requirement | 1 year ordinary residence in New Brunswick |
| Divorce Grounds | 1-year separation, adultery, or cruelty |
| Annulment Grounds | Void marriage (bigamy, consanguinity) or voidable marriage (fraud, duress, non-consummation, lack of capacity) |
| Property Division | Equal division under Marital Property Act, RSNB 2012, c 107 |
| Waiting Period | 31 days after divorce judgment before Certificate of Divorce |
| Court | Court of King's Bench, Family Division |
| Fee Waiver Available | Yes, for social assistance recipients or legal aid clients |
What Is the Difference Between Annulment and Divorce in New Brunswick
An annulment in New Brunswick treats the marriage as if it never legally existed, while a divorce legally terminates a valid marriage that was properly formed. The Court of King's Bench, Family Division grants annulments only when applicants prove the marriage was void ab initio (never valid) or voidable (valid but defective). Approximately 90% of Canadian annulment applications are denied because applicants cannot meet the strict evidentiary requirements. Divorce, by contrast, requires proving only that the marriage has irretrievably broken down under the Divorce Act, R.S.C. 1985, c. 3, s. 8.
Annulment and divorce differ fundamentally in their legal outcomes and procedural requirements. An annulment decree (declaration of nullity) retroactively declares that no valid marriage ever existed between the parties. This distinction affects property division, spousal support eligibility, and pension entitlements. A divorce judgment acknowledges the marriage was valid and orders its legal dissolution going forward. Both proceedings require filing with the Court of King's Bench, Family Division, but annulments demand substantially more evidence and typically require multiple court hearings.
The length of a marriage does not determine eligibility for annulment versus divorce in New Brunswick. A marriage lasting 2 weeks or 20 years equally requires divorce proceedings if the marriage was legally valid when it occurred. Short marriages sometimes lead people to seek annulments, but duration is not a recognized ground for annulment in Canadian law. The only path to ending a validly formed marriage is divorce under the federal Divorce Act.
Grounds for Annulment in New Brunswick
New Brunswick recognizes two categories of grounds for annulment: void marriages that were never legally valid, and voidable marriages that were initially valid but can be invalidated due to specific defects. Void marriages include bigamous unions where one spouse was already married, marriages between parties within prohibited degrees of consanguinity (parent-child, siblings, half-siblings, or adopted siblings under the Marriage (Prohibited Degrees) Act, S.C. 1990, c. 46), and marriages where neither party had legal capacity to consent. Voidable marriages include unions entered through fraud, duress, or coercion, marriages where one party was underage without proper consent, marriages where one party lacked mental capacity to understand the nature of marriage, and marriages that remain unconsummated due to physical incapacity or invincible aversion.
Void Marriages (Void Ab Initio)
A void marriage is considered to have never legally existed and requires no court order to be invalid, though obtaining a formal declaration of nullity provides legal certainty. Bigamy constitutes the most common ground for void marriage declarations in Canada. Under Canadian law, a person can legally marry only one spouse at a time; any subsequent marriage ceremony while the first marriage remains valid produces a void second marriage. The Marriage (Prohibited Degrees) Act, S.C. 1990, c. 46, s. 2(2) prohibits marriage between persons related lineally (parent-child, grandparent-grandchild) or as siblings or half-siblings, whether by blood or adoption. These prohibited marriages are automatically void.
Voidable Marriages
A voidable marriage is considered legally valid until a court issues a decree of nullity. These marriages can be challenged based on defects in consent or capacity that existed at the time of the marriage ceremony. Fraud constitutes grounds for annulment only when it relates to the fundamental nature of marriage or the identity of the other spouse; general deception or misrepresentation about character, wealth, or intentions typically does not qualify. Non-consummation provides grounds for annulment when one spouse has a physical incapacity to engage in sexual intercourse or demonstrates "invincible repugnance or invincible aversion" to consummation with the other spouse. Duress or coercion that forced a party into marriage against their genuine will can render the marriage voidable.
Grounds for Divorce in New Brunswick
Divorce in New Brunswick requires proving marriage breakdown under section 8 of the Divorce Act, R.S.C. 1985, c. 3. The Act recognizes three grounds establishing breakdown: living separate and apart for at least 1 year immediately preceding the divorce petition, adultery by the responding spouse since the marriage ceremony, or physical or mental cruelty by the responding spouse of such severity that continued cohabitation is intolerable. The 1-year separation ground accounts for the vast majority of Canadian divorces because it requires no fault-finding and both spouses can proceed jointly.
The separation period need not be consecutive under certain circumstances. Spouses who attempt reconciliation may resume cohabitation for up to 90 days total without restarting the 1-year separation clock. This provision in section 8(3) of the Divorce Act encourages reconciliation attempts without penalizing spouses who make good-faith efforts to repair their marriage. Spouses may also live "separate and apart" while residing under the same roof if they demonstrate separate lives, separate finances, and separate sleeping arrangements.
Adultery and cruelty grounds require proving fault by one spouse against the other. These fault-based grounds can accelerate divorce proceedings by eliminating the 1-year waiting period, but they require substantial evidence and often lead to contested litigation. Cruelty must be proven to be of such a kind as to render continued cohabitation intolerable, requiring more than mere incompatibility or isolated incidents. A spouse cannot rely on their own adultery as grounds for divorce; only the innocent spouse may cite adultery as grounds.
How to File for Annulment in New Brunswick
Filing for annulment in New Brunswick requires submitting a petition to the Court of King's Bench, Family Division, in the judicial district where you or your spouse resides. The petitioner must establish grounds for annulment with documentary evidence, witness testimony, and potentially expert reports from medical or psychological professionals. Legal representation is strongly recommended because annulment proceedings are procedurally complex and evidentiary requirements are stringent. The burden of proof rests on the petitioner to demonstrate that the marriage was either void or voidable.
The annulment petition must identify the specific legal grounds being claimed and provide factual allegations supporting those grounds. For non-consummation cases, medical evidence or expert testimony may be required. For fraud or duress claims, the petitioner must demonstrate how the deception or coercion affected their consent to marry. For bigamy claims, the petitioner must prove the respondent's prior marriage was legally valid and undissolved at the time of the subject marriage ceremony. Documentary evidence including marriage certificates, prior divorce decrees, immigration records, and communications may be relevant.
New Brunswick does not have a specific statute of limitations for annulment applications, meaning petitions can be filed at any time after the marriage ceremony. However, the longer the delay between marriage and petition, the more difficult it becomes to prove grounds and the less likely courts are to grant the declaration. A marriage that has been treated as valid for many years, with shared children, property, and lives, creates a strong presumption of validity that annulment evidence must overcome.
How to File for Divorce in New Brunswick
Filing for divorce in New Brunswick requires completing either Form 72A (Petition for Divorce) for individual petitions or Form 72B (Joint Petition for Divorce) when both spouses agree to proceed together. At least one spouse must have ordinarily resided in New Brunswick for at least 1 year immediately before filing, as required by section 3(1) of the Divorce Act, R.S.C. 1985, c. 3. The total filing fee is $110, consisting of $100 for the petition and $10 for the Clearance Certificate from the Central Registry of Divorce Proceedings in Ottawa under Rule 72.24 of the Rules of Court.
The divorce petition is filed with the Registrar of the Court of King's Bench, Family Division. The petitioner must serve the respondent spouse with the filed petition unless both spouses file jointly. The respondent has the opportunity to file an Answer (Form 72D) if they wish to contest the divorce or raise claims for parenting arrangements, support, or property division. Uncontested divorces where both parties agree proceed more quickly and with less expense than contested proceedings.
New Brunswick residents receiving social assistance under the Family Income Security Act or represented by Legal Aid are exempt from paying divorce filing fees under Rule 72.24(2). Additionally, the Registrar has discretion to waive fees when a solicitor certifies that legal services are provided without payment and that the filing fee would cause financial hardship. After the divorce judgment takes effect, either party may obtain a Certificate of Divorce (Form 72O) by paying a $7 fee.
Property Division After Annulment vs. Divorce
Property division operates differently following annulment versus divorce in New Brunswick, though provincial family law may still provide remedies in both situations. Under the Marital Property Act, RSNB 2012, c 107, married spouses are entitled to equal division of marital property upon separation, divorce, or death. This equal division presumption applies automatically in divorce cases. However, because an annulment declares that no valid marriage existed, the Marital Property Act's automatic equal division provisions may not directly apply to annulled unions.
Courts can still order property division following annulment using equitable remedies such as constructive trust or resulting trust doctrines. These remedies recognize that parties may have contributed labor, time, or money to property acquisition or maintenance even if no valid marriage existed. The analysis focuses on whether one party was unjustly enriched at the other's expense. This approach is similar to how New Brunswick courts handle property claims between common-law partners who do not qualify for Marital Property Act protection.
The timing of property division claims matters in both annulment and divorce contexts. Under section 12 of the Marital Property Act, claims for division of marital property may be brought before the divorce or annulment petition, during proceedings, or within 60 days after the divorce or annulment becomes final. Both parties must file Financial Statements (Form 72J) verified by oath or statutory declaration when property or support claims are involved. Courts consider both financial contributions and non-financial contributions such as homemaking when determining equitable outcomes.
Parenting Arrangements and Support After Annulment vs. Divorce
Parenting arrangements for children are handled identically whether parents' marriage ends through annulment or divorce in New Brunswick. Under the Family Law Act, SNB 2020, c 23, the court's paramount consideration is the best interests of the child when making parenting orders. The concepts of "parenting time" and "decision-making responsibility" have replaced the older terminology of custody and access. Children born during a void marriage remain legitimate if the marriage was registered in accordance with law and at least one parent believed it was a valid marriage at the time.
Child support obligations apply equally regardless of whether the parents' marriage ends through annulment or divorce. Support calculations follow the Federal Child Support Guidelines, which establish presumptive amounts based on the paying parent's income and the number of children. In New Brunswick, a Child Support Recalculation Service can administratively adjust support orders annually based on updated income information. The obligation to support children exists independently of the marital status of parents and continues until children reach adulthood or longer for children pursuing education.
Spousal support may be available following annulment under provincial family law, though the analysis differs from divorce cases. Under the Divorce Act, spousal support aims to recognize economic advantages or disadvantages arising from the marriage or its breakdown, apportion financial consequences of child care, relieve economic hardship, and promote self-sufficiency. Following annulment, courts may still order support if one party became economically dependent during the relationship and needs support to become self-sufficient. The duration of the relationship and degree of economic integration affect support entitlement.
Cost Comparison: Annulment vs. Divorce in New Brunswick
Divorce costs substantially less than annulment in most New Brunswick cases due to the simpler evidentiary requirements for proving marriage breakdown versus proving grounds for annulment. An uncontested desk divorce where both spouses agree on all issues typically costs between $1,500 and $3,000 in legal fees plus the $110 filing fee. Contested divorces involving disputes over parenting arrangements, support, or property division range from $5,000 to $30,000 or more depending on complexity and whether trial is required.
| Cost Category | Uncontested Divorce | Contested Divorce | Annulment |
|---|---|---|---|
| Court Filing Fee | $110 | $110 | $110-200 |
| Legal Fees | $1,500-3,000 | $5,000-30,000+ | $2,000-10,000+ |
| Expert Reports | Rarely needed | Sometimes needed | Often required |
| Court Hearings | Usually none | Multiple | Multiple |
| Timeline | 4-6 months | 1-3 years | 6 months-2 years |
| Certificate Fee | $7 | $7 | $7 |
Annulment proceedings typically cost $2,000 to $10,000 or more in legal fees because they require gathering extensive evidence, potentially obtaining expert medical or psychological reports, and appearing at multiple court hearings. The evidentiary burden is higher than divorce, requiring proof of grounds that courts rarely accept. Given that approximately 90% of Canadian annulment applications are denied, petitioners risk spending significant legal fees without achieving their desired outcome. Family lawyers often advise clients that divorce is more practical, even for short marriages where no fault exists.
Timeline Comparison: Annulment vs. Divorce
Divorce timeline depends primarily on whether the case is contested and how quickly spouses complete the 1-year separation period. The separation period itself accounts for most of the time in uncontested no-fault divorces. Once the 1-year separation is complete and both spouses agree on all issues, an uncontested desk divorce can be finalized within 4 to 6 months of filing. The divorce judgment becomes effective 31 days after the court grants it, at which point parties may obtain a Certificate of Divorce for $7.
Annulment proceedings take 6 months to 2 years or longer depending on complexity, evidence gathering requirements, and court scheduling. Cases requiring expert testimony, medical examinations, or extensive discovery take longer than straightforward bigamy cases where documentary evidence clearly establishes a prior undissolved marriage. Court appearances for annulment cases typically include a case management conference, potentially a settlement conference, and a hearing or trial if the matter is contested.
Contested divorces involving disputes over parenting, support, or property may take 1 to 3 years or longer to resolve through trial. However, New Brunswick encourages family dispute resolution through mediation and judicial resolution conferences. Under section 8(1) of the Family Law Act, SNB 2020, c 23, courts may order parties to attend family dispute resolution processes before proceeding to trial. The Court of King's Bench also offers Binding Judicial Resolution Conferences for relatively straightforward matters.
When Annulment Makes Sense Over Divorce
Annulment may be appropriate when clear evidence establishes that the marriage was legally defective from its inception and formal recognition of that invalidity matters to the parties. Immigration fraud represents one of the most common scenarios where annulment is sought and sometimes granted. If a person married primarily to obtain immigration status without genuine intention to form a marital relationship, courts may find the marriage voidable due to fraud going to the root of the marriage contract. However, even immigration fraud cases are difficult to prove and courts scrutinize such claims carefully.
Religious considerations motivate some parties to seek annulment rather than divorce. Certain religious traditions prohibit remarriage after divorce but permit remarriage after annulment. However, a civil annulment from the New Brunswick Court of King's Bench is separate from religious annulment processes. A civil annulment does not automatically constitute a religious annulment, and a religious annulment has no effect on civil marital status. Parties seeking religious recognition of annulment must pursue both civil and religious processes separately.
Bigamy cases present the clearest grounds for annulment because the prior marriage makes the subsequent ceremony legally void regardless of the parties' intentions. Documentary evidence including marriage certificates, divorce decrees, and vital records can establish bigamy without complex testimony. However, even in bigamy cases, the party seeking annulment should consider whether divorce would be simpler if the prior marriage has since been dissolved, making the subsequent marriage potentially valid through the doctrine of validation.
Frequently Asked Questions
How long does an annulment take in New Brunswick compared to divorce?
An annulment in New Brunswick typically takes 6 months to 2 years to complete, while an uncontested divorce takes 4 to 6 months after the 1-year separation period. Annulments require multiple court hearings and extensive evidence gathering, whereas uncontested divorces often proceed as desk divorces without court appearances. The annulment timeline extends further when expert medical or psychological testimony is required or when the respondent contests the petition.
Can I get an annulment in New Brunswick because my marriage was short?
No, the duration of a marriage is not grounds for annulment in New Brunswick or anywhere in Canada. A marriage lasting 2 weeks requires the same divorce process as a marriage lasting 20 years if it was legally valid when performed. Annulment requires proving specific grounds such as bigamy, fraud, duress, non-consummation, lack of mental capacity, or marriage within prohibited degrees. If your marriage was legally valid, divorce is the only option regardless of duration.
What is the filing fee for annulment vs. divorce in New Brunswick?
The divorce filing fee in New Brunswick totals $110, consisting of $100 for the petition plus $10 for the Clearance Certificate from the Central Registry of Divorce Proceedings in Ottawa. Annulment filing fees are similar, typically $110 to $200 depending on the specific forms required. However, annulment legal fees typically range from $2,000 to $10,000 or more due to evidentiary complexity, compared to $1,500 to $3,000 for uncontested divorces.
Does property get divided differently after annulment vs. divorce?
Yes, property division operates differently following annulment versus divorce in New Brunswick. Under the Marital Property Act, RSNB 2012, c 107, divorced spouses are entitled to equal division of marital property. Because annulment declares no valid marriage existed, the Act's automatic equal division may not apply. Courts can still divide property using constructive trust or resulting trust doctrines, but the analysis focuses on unjust enrichment rather than marital property rights.
Can I still get spousal support after an annulment in New Brunswick?
Yes, spousal support may be available following annulment under New Brunswick provincial family law. While the Divorce Act spousal support provisions technically apply only to valid marriages, courts recognize that economic dependence can develop during any cohabiting relationship. If you became economically dependent during the relationship and need support to become self-sufficient, you may claim support even after annulment. The duration of cohabitation and degree of economic integration affect entitlement.
What happens to children after an annulment in New Brunswick?
Children born during a void or voidable marriage remain legitimate under Canadian law if the marriage was registered in accordance with law and at least one parent believed it was valid. Parenting arrangements including parenting time and decision-making responsibility are determined using the same best interests of the child standard that applies in divorce cases under the Family Law Act, SNB 2020, c 23. Child support obligations also apply identically regardless of whether parents divorce or annul their marriage.
How do I prove grounds for annulment in New Brunswick?
Proving annulment grounds requires gathering documentary evidence, witness testimony, and potentially expert reports. For bigamy, you need the prior spouse's marriage certificate and proof it was not dissolved before the subsequent marriage. For non-consummation, medical evidence or sworn testimony may be required. For fraud or duress, you must demonstrate how the deception or coercion affected your consent to marry. The burden of proof rests on the petitioner, and courts presume marriages are valid.
Is a religious annulment valid in New Brunswick courts?
No, a religious annulment has no effect on your civil marital status in New Brunswick. A religious annulment granted by a church, synagogue, mosque, or other religious body is recognized only within that religious community. To legally end your marriage in New Brunswick, you must obtain either a civil annulment (declaration of nullity) or a divorce from the Court of King's Bench, Family Division. If you want both religious and civil recognition, you must pursue both processes separately.
Can I get a fee waiver for annulment or divorce in New Brunswick?
Yes, New Brunswick provides fee waivers for divorce proceedings under Rule 72.24(2) of the Rules of Court. Recipients of social assistance under the Family Income Security Act and persons represented by Legal Aid are exempt from filing fees. Additionally, the Registrar may waive fees when a solicitor certifies that legal services are provided without payment and the fee would cause financial hardship. Similar fee waiver provisions may apply to annulment proceedings.
What is the residency requirement for annulment vs. divorce in New Brunswick?
Divorce requires at least one spouse to have ordinarily resided in New Brunswick for at least 1 year immediately before filing the petition, as required by section 3(1) of the Divorce Act, R.S.C. 1985, c. 3. Annulment proceedings are handled by the Court of King's Bench, Family Division, and generally require a connection to New Brunswick such as residence or the marriage having been performed in the province. The 1-year residency requirement specifically applies to divorce, not necessarily to annulment.